A story out of Utah this week neatly showcased the rising concerns among civil liberties and press freedom groups around so-called "ag-gag" laws, which, in various ways, make it illegal to document animal abuse on factory farms and other agricultural businesses. In Utah, authorities charged a local woman with taking photographs of animal cruelty from a public vantage point, and then quickly dropped the charges after significant public outcry.

Ag-gag laws have long been highly unpopular among the animal rights and food safety movements. But, the Utah case shows the extent to which these laws are flagrant violations of the First Amendment—and how much they have in common with other recent attempts to limit our constitutional right to photograph and record (while in public). While the animal welfare aspects to the problem are central, these constitutional considerations should not receive short shrift.

There are three basic flavors of ag-gag laws, and many states have introduced measures that include more than one. The first type makes it illegal to record an agricultural operation without the consent of its owner or operator. The second makes it a crime to lie on your resume to gain access to an agricultural facility. And the third requires an individual that suspects she has recorded a depiction of animal cruelty to turn the recording over to the cops. This last flavor is particularly insidious, as it has been characterized by supporters as an anti-animal cruelty measure (but actually seeks to make long-term investigations impossible).

Taken together, these measures—which are law in six states, and have been introduced in 11 others—threaten to virtually eliminate undercover investigations into not just animal abuse, but labor practices, food safety, environmental pollution, and numerous other consumer and public welfare concerns. Worse, many ag-gag laws and bills are quite loose in their definition of agricultural operations, meaning they would cover not only factory farms and slaughterhouses, but even supermarkets and restaurants.

Aside from the public policy concerns, ag-gag laws raise major constitutional issues, some of which may not be immediately obvious.

First, both the unauthorized recording and "resume fraud" provisions punish speech without proof of harm. There are very limited categories of speech—think perjury, price-fixing, or threatening to punch someone in the face—that are subject to lesser First Amendment protection because they are inherently harmful. But ag-gag laws cover speech without evidence of harm, making it illegal to record video without consent, or to lie on your resume to get that video, even if you never do anything with it.

Second, and relatedly, the employment "fraud" statutes are particularly bad because they are not actually fraud statutes. Fraud is one of those categories of speech that is not subject to full First Amendment protection, but to prove fraud you have to show injury resulting from a material misrepresentation. Here, not only do the laws not require proof of injury, the injury that could result isn't actually a result of the lie on the resume.

Rather, when you lie on your resume to get a job at a factory farm and take a video of the abuse of downer cows, it's the abuse of downer cows that results in fewer people doing business with that company, not the recording of the abuse. I realize that point isn't particularly intuitive, but it's true. The Supreme Court recently cited a similar rationale in striking down a law making it illegal to lie about having the Medal of Honor without proof of harm.

There's a lot more to say about ag-gag laws, and we'll be saying it. For now, please urge Governor Haslam of Tennessee to veto that state's bill. I've also taken the liberty of listing all of the enacted and pending ag-gag measures around the country below, as well as noting what type they are. "UR" is an unauthorized recording provision, "EF" is employment fraud, and "MR" is mandatory reporting.

Laws in force:

Kansas (UR)

Montana (UR)

North Dakota (UR)

Utah (UR, EF)

Iowa (UR, EF)

Missouri (MR)

Legislation pending (some of these measures have since died, but could be reintroduced):

Anonymous

Humans are the stewards of all living things, not the jailers! Free roaming animals make better, healthery food than caged beast

May 3, 2013

12:52 PM

Anonymous

What about the instances where animal rights activists make a video, edit the video to present abuse where none exists, or actually carry out abusive behaviors with animals and film that abuse in order to accuse a farmer or rancher or other animal interest of abuse?

This has already happened and caused problems for those who were not creating or condoning abuse, but were accused on the basis of these "faked abuse" videos.

So how are officials and the public going to differentiate between videos of actual abuse and videos of "created" abuse?

May 4, 2013

2:58 PM

Steak Mc Burger...

I believe that while Government should stay as far away from business as possible, if the Farms have nothing to hide, why prevent people from coming in? Iraq could have had it easy when they let UN inspectors come into their country and check for WMD. Unfortunately for them, Saddam was still in power and Murcia doesn't like that. Farms should be given a grant only if they allow government officials to inspect quality of life for animals in the farm.

May 6, 2013

9:49 PM

Indiana Student

Thank the Lord that Indiana's bill failed in the final minutes!

May 7, 2013

6:24 PM

NYC UWS

THANK YOU ACLU for picking this up and fighting this very important cause. Allowing industries to prevent folks from speaking out against abuses of animal, labor practices, environmental pollution is a VERY SLIPPERY SLOPE. The ag-gag laws are so offensive to morality and the human condition on two levels: (1) as an animal lover, I would like to see what goes on behind closed doors and (2) as a citizen, I want to encourage, not discourage, the public reporting of abuse (against animals, staff, the environment). Thank you for picking up the fight. It's one of the most important issues in American history.

May 9, 2013

9:35 AM

Brian O'Neill

The videos I've seen showing animals being grossly abused don't have a smidgeon of phoney doctoring. So, while there may be a record (I'll take your word, ha ha, on that one) of "animal rights activists editing the video to present abuse where none exists" the vast majority, I am certain, show abuse that would put you behind bars if the animal(s) were a dog or cat. If farms are on the straight and narrow they have nothing to hide. Of course, regrettably (sp.?), there is a lot of despicable stuff to hide, hence, the desire to prevent the light of day via ag gag legislation. A pox on their houses and great praise to the ACLU for this one.

May 9, 2013

5:27 PM

LizziDesign

People have a right to know how their food is produced. The only reason this remains hidden from the public is that factory farms want to protect their investment and keep the profits rolling in. If more people were aware of how their food was produced they wouldn't be eating what they are. If factory farms were not doing anything wrong they would not have nothing to hide. May this be the beginning of the end of factory farming. Thank you for taking on this cause.

May 28, 2013

6:19 PM

Anonymous

I am sorry but if nothing is to be hidden and their is no ABUSE even with people selling animals then why care what is seen or video. Old saying if you have something hide,, then you are very defensive and you are one of those that will stab you in back.. People have right to know... that it not just people abuse animals but also those that supposedly provide food and if its ok I guess ACLU doesn't mind if we do the same thing to you if you become sick and feeble??? '

August 3, 2013

12:44 PM

Torvus

The first Ag-gag law was I believe introduced by the Canadians in 1966. Called the Seal Protection Act, it was used solely for arresting, controlling and intimidating people who wanted to protect the seal. Not one sealer was ever prosecuted under it, but Patrick Moore (Green peace) was arrested while trying to protect a seal pup. Police dragged him away (!) and a sealer promptly ran over to thepup and broke its skull with a club. Mr Moore said the only thing that wasn't illegal was hitting the animal on the head and skinning it.

Today what I find rally weird is that some nations are spying on their people left right and centre - listening in to phone calls, reading emails, CCTVs everywhere, intrusive handling of one's person at airports, police can apparently take children away from their parents on some idiotic charge, they can freely smash down someone's door and gain entry, create mayhem, find they've made a mistake (got the wrong house) and walk away from it, they can spray pepper into a peaceful demonstrator's eyes or tazer them and/or arrest them, they can arrest people who record these goings on - ostensibly all because of the threat of terrorism. Yet capturing on camera the terrorism that goes on in factory farms and slaughterhouses has been made illegal in many states in the US. In my opinion the US authorities have turned themselves into the very terrorists they say they fear; now many in their own nation fear them. Rightly so, for it is rule by creeping despotism. For this rule we all pay taxes. We pay taxes to have our freedoms denied us. It seems that governments are the lapdogs of money-creators and nothing and nobody else matters, as if money-creating and ethics are opposites. No animal or human or forest or plant or sea or land is safe now. Governments, paid for by us, only give lip service to our demands. Depressing ain't it?

August 13, 2013

1:14 PM

Vicki B.

People who 'think' animals have no ability to "interpret pain" and at the very least FEEL it for God's sake are the stupid ones. And they won't escape a final judgment of their actions when it's time for them to take their little trip into the Afterlife.

They obviously have no clue what the different areas of the human brain function to do, have no idea that animals of all mammalian orders have a limbic system and are totally unaware that the perception of pain arises from that system and so animals DO both feel pain physically and perceive it with limited emotions that arise in the limbic system.